6.7. SR 09-06-2005
I tern ~. 7 .
13065 Orono Parkway
Elk Rivec lvlN 55330
August 30, 2005
File: 226-034P
The Honorable Mayor and City Council
City of Elk River
13065 Orono Parkway
Elk River, 1v1N 55330
RE: COUNTY ROAD 40 (CLEVELAND AVENUE)
EMINENT DOMAIN RESOLUTION
Dear Council Members:
As you are aware, the City has committed to acquiring the right-af-way for the Sherburne
Count)1upgrade of County Road 40 (Cleveland Avenue) between CSAH 12 and CSAH 13.
The deadline for acquiring the right-of-way is April 15, 2006, to ensure use of the federal
funds programmed for this project. Since the deadline is very short, we would recommend
that the City Council initiate this process by adopting the attached eminent domain
resolution. Staff will likely not file it immediately with the District Court; but rather, begin
to make contact with the affected property owners, attempting to acquire all of the
properties without use of the City's eminent domain powers. However, if in fact we find it
necessary to use eminent domain powers for one or more properties, the process will already
have started, thus allowing us to complete sufficient work by April IS, 2006 to preserve use
of the Federal funds.
Attached is a resolution prepared by Howard Rosten of Malkerson, Gilliland, Martin, LLP,
the attorney who has worked on several land acquisition projects with the City in the past.
Staff would reconunend adoption of this resolution. If you have any questions regarding
this issue, I will be in attendance at your September 6, 2005 City Council meeting.
Sincerely,
:h:rj1l!~
Terty J. Maurer, PE
City Engineer
Phone: 763.635.1000
Fax: 763.635.1090
S:\EngineerImprovProj\200S Improvement Projects\COlmty Road 40 Turnback\08 3005 cc memo.doc
\VW\v,ci.elk -river.mn. us
RESOLUTION NO.
CITY OF ELK RIVER
COUNTY OF SHERBURNE
STATE OF MINNESOTA
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ELK RIVER
AUTHORIZING EMINENT DOMAIN AND ACQUISITION OF REAL
PROPERTY IN ACCORDANCE WITH MINN. STAT. ~ 117.042 FOR THE
COUNTY HIGHWAY 40 CONSTRUCTION PROJECT.
RECITIALS
WHEREAS, the City of Elk River is a statutory city organized and existing under
the laws of the State of Minnesota with all powers, rights and authority of a statutory city
and is a public body corporate and politic;
WHEREAS, the City of Elk River has the authority to acquire real property by
condemnation in accordance with Minnesota law including MilUl. Stat. ~ 412.211, Minn.
Stat. SS 465.01 and 465.16, and Minn. Stat. SS 469.124 through 469.134;
WHEREAS, the City of Elk River deems it necessary, convenient and advisable
to facilitate the construction of a County Highway '\vithin the limits of the City of Elk
River from CSAH 12 to CSAH 13.
WHEREAS, the City of Elk River has been advised by Sherburne County that
the County is willing to proceed with the construction of County Highway No. 40
between CSAH 12 and CSAH 13 ("County Highway 40 Project") provided that the City
of Elk River is willing to acquire the necessary right-of-way no later than the Federal
deadline of April 15, 2006;
WHEREAS, the City of Elk River deems it necessary and convenient to acquire
the property depicted on Sherburne County Highway Rigllt of Way Plat No. 30, a copy of
which is attached hereto as Exhibit A, for the County Highway 40 Project in order to
facilitate the County's construction of the County Highway 40 Project as well as
improving roads, utilities and other public infrastructure in the City of Elk River and
otherwise benefit the health, safety and welfare of the residents of the City of Elk River
("Objectives")
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Elk River.
1. In order to carry out the Objectives, it is necessary to acquire fee title to
the real property identified in Exhibit A attached hereto ("Real Property").
2. The acquisition of the Real Property by the exercise of the power of
eminent domain in the manner provided for by Minnesota Statutes Chapter 117 serves a
public purpose and is deemed to be necessary to further the Objectives.
3. TIle City of Elk River deems it necessary for the Objectives to acquire said
Real Property.
4. Because the Federal deadline to acquire the Real Property is April 15,
2006 which is prior to the time by which court-appointed commissioners could
reasonably be expected to render their a\vard for the taking of the Real Property, the City
of Elk River deems it necessary to proceed without delay under Minn. Stat. ~ 117.042 to
pay to the owners or into court a sum of money to secure compensation to the owners of
the real property, wInch amount shall be equal to the city's approved appraisal value as
determined by City staff.
5. The City of Elk River staff is hereby authorized and directed to execute all
documents and contracts necessary to acquire the Real Property identified in Exhibit A,
which actions include the specific authorization to: (a) hire appraisers and obtain
2
appraisals or minimum damage assessments of the real property interests to be acquired,
(b) complete and record Sherburne County Highway Right-of-Way Plat No. 40 (which
the City acknowledges is now only in draft, but fairly depicts the property to be acquired,
( c) retain such professionals as may be reasonably necessary to facilitate the acquisition
of tIle Real Property including, but not limited to, engineers, appraisers, surveyors and
attorneys.
6. Pursuant to Minn. Stat. ~ 117.036, the owners of the Real Property shall
be provided with a copy of an approved appraisal at least twenty (20) days prior to
presenting the condemnation petition to the Court and the City's appraiser must confer
with OIle or more of the owners of the property, if reasonably possible.
7. Prior to commencing condemnation, the City Staff is directed to make
\Vfitten offers to affected property owners and attempt to negotiate such offers to a
successful conclusion, which negotiations and offers shall be conducted in good faith
prior to the commencement of condemnation. In making a good faith offer and in
l1egotiating for the acquisition of the Real Property, City Staff is directed to consider the
appraisals in its possession and other information that may be relevant to a determination
of damages.
8. In circumstances where negotiation and the wTitten offers prove to be
unsuccessful, City Staff shall commence the necessary Court actions to condemn the Real
Property under the procedures provided for in applicable Minnesota Statutes, and in
conlpliance with all requirements of said statutes, including using the quick take
procedure set forth in Minn. Stat. 9 117.042.
.,
.J
9. The City of Elk River staff is further authorized and directed to take all
-
action necessary to implement this authorization including obtaining appraisals or
minimum damage assessments of all property interests to be acquired and retaining leg;al
counsel to assist in commencing condemnation. Any actions previously taken by staff in
this regard are hereby ratified and affirmed.
The motion for adoption of the foregoing resolution was introduced by
and duly seconded by Councilmember
COllncilmember
, and upon a vote being taken thereon, the following voted in favor
thereof:
A11d the following voted against the same:
Dated:
Stepllanie A. Klinzing, Mayor
ATTEST:
, City Clerk
4